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2021 DIGILAW 531 (JK)

State of J&K v. Zoora

2021-10-07

PANKAJ MITHAL, RAJNESH OSWAL

body2021
JUDGMENT : 1. The instant application has been filed by the applicant/appellant seeking leave to file appeal against the judgment dated 23.12.2015 passed by the learned Principal Sessions Judge, Kathua (hereinafter to be referred as the trial court) in File No. 67/Sessions titled as State vs. Zoora arising out of FIR bearing No. 132/2013 for commission of offences under Sections 363/376/344 RPC registered with Police Station, Kathua. 2. Brief facts necessary for disposal of the present application are that on 14.04.2013, PW-Mohd. Shafi lodged a written report with Police Post, Nagri Parole, alleging therein that his daughter, the prosecutrix, aged about 16 years was missing since 27.03.2013, regarding which he had already lodged a report on 31.03.2013. It is further alleged in the report that he has come to know that the prosecutrix had been kidnapped by the respondent after enticing her to go with him. On the basis of said report, FIR No. 132/2013 for commission of offences under Sections 363/109 RPC was registered against the respondent. 3. During the investigation, naka was laid by the Police and one motorcycle bearing No. PB21E-5030 that was being driven by the respondent was intercepted. The prosecutrix was a pillion rider on the said motorcycle. The motorcyclist tried to run away but he was nabbed by the Police. After recording of the statements of the prosecutrix and the witnesses, challan for commission of offences under Sections 363/376/344 RPC was filed against the respondent. 4. During the course of the trial, the prosecution has examined as many as 15 witnesses, namely, PW-1 Mohd. Shafi, PW-2-the prosecutrix, PW-3 Farman Ali, PW-4 Tooda Mohd., PW-5 Smt. Shambi, PW-6 Attar Din, PW-7 Puran Chand, PW-8 Kasturi Lal, PW-9 Davinder Sharma, PW-10 Bashir Ahmed, PW-11 Mool Raj, PW-12 Dr. Susheel Sharma, PW-13 Dr. Sanjeev Prihar, PW-14 Dr. Pushpa Raina and PW-16 Hukam Chand ASI. 5. After the prosecution concluded its evidence, the statement of the accused-respondent was recorded under Section 342 of Cr.P.C and thereafter, learned trial court, after hearing both the parties, has acquitted the respondent herein. Learned trial court has acquitted the respondent on the ground that the age of the prosecutrix at the time of occurrence was in the range of 18-19 years and further in view of the evidence, allegations of kidnapping and rape of the prosecutrix by the respondent are not substantiated from the statement of the prosecutrix. Learned trial court has acquitted the respondent on the ground that the age of the prosecutrix at the time of occurrence was in the range of 18-19 years and further in view of the evidence, allegations of kidnapping and rape of the prosecutrix by the respondent are not substantiated from the statement of the prosecutrix. Further, the evidence on record suggested that the prosecutrix had accompanied the respondent out of her free volition and enjoyed sex with him with her voluntary consent. 6. The statement of PW-1 Mohd. Shafi is only with regard to the lodging of missing report and the FIR under reference. The most important witness is PW-2 the prosecutrix. The statement of PW-2 reveals that she had travelled to Jalandhar along with the respondent on his motorcycle and both of them had stayed in house for three days. Thereafter from that place, they proceeded to another house where 5-6 persons were residing and they stayed there for about 5-6 days. It has also come in her statement that the respondent used to go away for about 4-5 hours, thrice or four times a day leaving her behind and he would come back on his own. She has stated that the respondent forced himself upon her and did not allow her to talk to any of her relatives on phone. She admitted that the respondent was not carrying any weapon with him. PW-3 Farman Ali is a witness with regard to the missing of the prosecutrix and he has deposed in his statement that they had informed the police that the respondent had taken away the prosecutrix and the respondent along with the prosecutrix was proceeding from Pathankot-Lakhanpur towards Jammu. Later on, they were apprehended at naka. The said witness admitted that first naka of J&K Police from Punjab towards Jammu is at Lakhanpur, thereafter, there are nakas at Hatlimorh and Kalibari. PW-4 Tooda Mohd. has stated about the missing of the prosecutrix and her recovery from the custody of the respondent but he had not supported so far as seizure memo is concerned. PW- 5 Smt. Shambi, who happens to be mother of the prosecutrix has turned hostile. Further, she had admitted after recovery of the prosecutrix that the prosecutrix had told her that the respondent had raped her at several places. PW-6 Attar Din is the witness with regard to the missing of the prosecutrix. PW- 5 Smt. Shambi, who happens to be mother of the prosecutrix has turned hostile. Further, she had admitted after recovery of the prosecutrix that the prosecutrix had told her that the respondent had raped her at several places. PW-6 Attar Din is the witness with regard to the missing of the prosecutrix. He has stated that the prosecutrix was recovered when she was coming on motorcycle along with the respondent. He further stated that by the time, he reached on spot, police had already arrested the respondent and recovered the prosecutrix. PW-7 Puran Chand is the witness with regard to the seizure memo, who has proved the same. PW-8 Kasturi Lal deposed that he was posted as Naib Tehsildar, Executive Magistrate 1st Class, Nagri. He re-sealed two packets marked as A and B and issued the authority letter in the name of FSL. PW-9 Davinder Sharma deposed that he was posted as Moharir in Police Post, Nagri. He proved the missing report lodged by the complainant. PW-10 Bashir Ahmed who also posted as Moharir in Police Post, Nagri is the witness with regard to the handing over of the file relating to the prosecutrix to the Investigating Officer. PW-11 Mool Raj is the chemical analyst and he has proved the FSL report. PW-12 Dr. Susheel Sharma, Radiologist in his statement has deposed that he is of the opinion that radiological age of the person was between 17-19 years on the date when X-ray films were taken. PW-13 Dr. Sanjeev Prihar has examined the respondent and found him to be physically and mentally fit for performing all physical activities. PW-14 Dr. Pushpa Raina examined the prosecutrix and found that there were no marks of violence on any part of body. He deposed that the hymen was found ruptured (old) and as per her opinion, the prosecutrix was habitual of sexual intercourse. PW-16 Hukam Chand ASI, Investigating Officer has deposed with regard to the investigation conducted by him. 7. From the evidence brought on record, it is evident that one certificate issued by the District Registrar, Births and Deaths, Kathua was placed on record to demonstrate the age of the prosecutrix as 25.03.1997. However, the same was not proved by the prosecution. From the evidence of PW-12-Dr. Susheel Sharma, it is evident that in his opinion, the age of the prosecutrix was in the range of 17-19 years. However, the same was not proved by the prosecution. From the evidence of PW-12-Dr. Susheel Sharma, it is evident that in his opinion, the age of the prosecutrix was in the range of 17-19 years. So, learned trial court has rightly held the age of the prosecutrix in the range of 18-19 years. Further, learned trial court has rightly come to the conclusion that the prosecutrix with her consent had travelled to the Jalandhar i.e. at a distance of more than four hours from the place where she boarded the motorcycle and further, there is evidence on record that the respondent used to leave her behind for 4-5 hours and still she did not make any attempt to run away. She did not make protest, shout, scream or complain when she was being taken. All these circumstances clearly demonstrate that the prosecutrix was a consenting party and had voluntarily gone with the respondent. Learned trial court has rightly come to the conclusion with regard to the factum of age of the prosecutrix and further with regard to her being a consenting party to sexual intercourse. 8. In view of all what has been discussed above, no fruitful purpose shall be served in the event any leave is granted to the applicant/appellant. As such, we do not find any reason to grant leave to file the criminal acquittal appeal. The application bearing SLA No. 90 of 2016 is, accordingly, dismissed. As a result, the accompanied proposed appeal shall also stands dismissed.